Thursday, December 8, 2011

A Randian Insight on Today's Prop 8 Trial

Listening in to parts of the hearings today regarding the Prop 8 trial brought to mind something Ayn Rand had said, and how her insight could help make a decision about one factor of the hearing.

It wasn’t Rand’s thoughts on legal theory that came to mind. It was what she wrote about art and artists. She held that art and artists were very important as they indicate the state of the culture.

Rand said that art was a selective recreation of reality by the artist. This is not the part that I found particularly insightful, but her next observation was. She also noted that because as artist is selectively recreating reality that they are revealing what they find to be of metaphysical importance. There is much from which they can pick and choose, that they pick certain aspects of reality, over others, indicates what they find to be of importance.

So, how does this apply to today’s hearings?

Part of the hearing dealt with whether or not a video recording of the trial should be released to the public. Proponents of Prop 8 insist the videos must be kept sealed. I would be doing the same thing in their position. The videos are very damaging to their public claims.

Their problem is that the scare-mongering claims they made in their television commercials are entirely absent from their testimony in court. But they had little choice. Their television commercials were mostly dishonest, almost always exaggerated and pure, dishonest hype meant to terrify the public enough to support Proposition 8. In court, evidence can be scrutinized, there is cross-examination, and they have to back up their claims. They can’t. That is why they lost in court and was able to secure a very slight victory at the ballot box.

Reading the transcripts is time consuming and much of it is pure court procedure. But, if the videos were made public, important parts could be made public. When the public saw how weak the case for Proposition 8 was it could change perception about the measure even more.

Part of the debate about keeping this secret was based on the idea that the judge in the case, Vaughn Walker, had said he would use the video record to help him when it came to writing his decision.One of the justices in the case suggested that this made the video part of the deliberative aspect of the trial and judge’s deliberations, and material associated with it, are not part of the public record. But, testimony per se, is part of the record.

Without considering the other reasons offered for hiding the facts from the public we can now look at this question. Is the video part of the deliberative process, similar to judicial note taking? The answer is: No!

Like the artists, a judge, when taking notes, selectively writes down facts of particular importance, according to his own understanding and values. He will note issues that are significant and ignore those that are not. Note taking reveals the thoughts of the judge and are not public.

The video, however, are entire records of the transcription. If anything, they are more complete records than transcripts, as they reveal the nuance of speech, facial expressions and other bits of information that can’t be included in transcripts.

There is none of the selectivity that is found in a judge’s notes. As such they are transcripts of the trial and should be made public.